Crisis in the Judiciary?

News:

CJI publishes subjective-wise roster for the first time in history

Facts:

On January 12th, 2018, after submitting a seven-page letter of protest to the Chief Justice of India(CJI), four senior-most judges of the Supreme Court- Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurian Joseph, held an unprecedented press conference at the residence of Justice Chelameswar. The judges publicly spoke of their grievances, alleging “selective” allocation of sensitive cases to specific benches by the CJI. As an aftermath of this event, and in an attempt to resolve the conflict, the Chief Justice of the Supreme Court, Dipak Misra, on Feburary 1 published a new subject-wise roster for allocation of cases to various Supreme Court Benches. The roster is set to come into effect from February 5, 2018.

Justice Gogoi is next in line to take over from Misra as CJI, while Justices Chelameswar, Joseph and Lokur will retire this year.

Side:

'Master of the Roster’ refers to the privilege of the Chief Justice to constitute benches to hear cases. A Constitution Bench led by Chief Justice Misra, on November 10 last year, had proclaimed that it was the Chief Justice’s sole prerogative to decide what case has to be heard by which judge and reaffirmed his position as Master of the Roster to protect the Supreme Court from “anarchy”.

Many lawyers and judges consider it unfortunate that judges of the highest court in the land, where people go to seek justice, had to turn to the people's court to receive the same. Retired HC judge RS Sodhi, labelling the conference as "immature", said that all four judges should be impeached. Recently, Justice CS Karnan, a sitting High Court judge, had gone public and had even sentenced the then CJI and seven other Supreme Court judges to jail, for, in his view, their violation the SC/ST (Prevention of) Atrocities Act. In a dramatic turn of events however, he ended up being the first sitting judge to be held guilty of contempt of court and jailed. Ironically enough, Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurian Joseph were among those accused by Karnan of charges similar to those the very same people have today raised against the CJI. The grandstanding by the judges in public, and accusing the Chief Justice of misconduct, is merely a few steps away from Justice Karnan's own actions.

It is incredulous that judges who deal with very intricate and delicate topics on a day to day basis could not resolve an internal issue amongst themselves, especially considering that ultimately it is an issue that can only be resolved from within the judiciary itself. The senior-most members of the court have openly raised doubts about the credibility of the system. Such dramatic acts will only set a bad precedence and hurt the image of the judiciary in the eyes of the public. A difference of opinion is nothing unheard of in a dynamic system, but once allowed to happen, such events hold the potential to grow disproportionately, ultimately empowering individuals with a difference of opinion to hold the entire court to ransom.

Former Lokayukta and retired judge of the Supreme Court, Justice Santosh Hegde said that judges laying down their concerns in front of the public can only harm judicial confidence. The Judiciary cannot behave like the Executive or the Legislative. When the judiciary approaches the public domain, it is the end of judicial confidence. He also pointed out that the top court’s judges have never protested in such a public manner before. When former Prime Minister Indira Gandhi, in 1974, had superseded 3 judges to appoint a Chief Justice, the senior judges had resigned in protest rather than undermine the system.

Flip-Side:

The November 10 judgement passed by a bench headed by Justice Mishra had effectively nullified a judicial order passed by Justice Chelameswar on the previous day to constitute a Bench of the five senior most Supreme Court judges to hear a PIL for SIT probe into the Lucknow medical college scam involving an alleged conspiracy to bribe the Supreme Court judges for a favourable order. A Bench led by Chief Justice Misra had heard the medical college case.

The four dissenting judges had, in a letter addressed to Chief Justice Misra and circulated to the media, highlighted how, recently, the Chief Justice of India had selectively allocated cases of “far-reaching consequences for the nation and the institution” to “preferred Benches”. The letter stated that a Chief Justice's authority as the Master of the Roster did not make him a “superior authority”. “The Chief Justice is only the first amongst equals – nothing more or nothing less,” the letter said.

Explaining their unprecedented action, Chelameswar had said the judges were driven by the fear that failure to communicate their concerns could jeopardize the institution of the Supreme Court and thereby of democracy. The four justices in their briefing also alluded to the controversial 2014 death of judge B.H. Loya, who was presiding over the Central Bureau of Investigation court in the Sohrabuddin Sheikh encounter case. Since then, the case which was initially listed before a bench headed by justice Arun Mishra has been taken over by a bench headed by the CJI.

For four senior-most judges of the Supreme Court, including Justice Gogoi who is next in line to be the CJI, to come out in the open and break the judicial code of conduct, the matter must have been serious. A democracy like India cannot afford to have judges who do not dare to stand up for their own rights as judges and also for the systematic working of the highest court. Bringing the issue to the public would ensure that future judges and the executive would be cautious about trying to interfere in the third pillar of democracy and bending it to their will. The senior judges of the court maintaining silence over gross injustice within the system would have been akin to Nero playing the fiddle whilst Rome burned. The semblance of 'all-is-well' should not be a veil to cover the rot in a system as vital to the idea of India as the Judiciary.